JUDGMENT P. Subramonian Poti, J. 1. The Receiver appointed in O.S. 199 of 1966 of the Sub Court, Palghat who is the plaintiff in a suit for recovery of money claimed as due under a contract is the appellant in this appeal. The suit was decreed in part and to the extent the decree was against the plaintiff, the matter has been taken up in appeal. The Kerala State Electricity Board, the defendant in the suit against whom the suit has been decreed in part by die court below, has not chosen to challenge the decree. 2. The plaintiff is a firm which traded under the name "The United Timber Syndicate". The Receiver represents the firm at the moment as one appointed by the court in a suit O.S. 199 of 1966, that being a suit for dissolution of the partnership. The plaintiff firm entered into a contract with the Kerala State Electricity Board for supply of 50,000 teakwood poles at Kundara Yard. The contract was entered into on 13th August 1962. A security deposit of Rs. 92,500 had to be made by the plaintiff, of which Rs. 20,000 had to be paid initially and the balance had to be made up by retention of 5 per rent from the interim bills presented for payment. The period of supply of 50,000 poles was one year and the payment had to be made for every 1,000 poles selected and accepted. In accordance with the agreement the plaintiff deposited the security of Rs. 20,000 and began supplying the teakwood poles. Interim payments were also received. When such payments were made to the plaintiff amounts were retained in compliance with the condition in the agreement that it will be so retained to make up the security of Rs. 92,500. According to the plaintiff, by about October 1962, the Kundara Yard became congested so much so the check measurement and acceptance of the supply became difficult. Hence the defendant requested delivery of 10,000 poles to be made at Nallalam Yard near Kozhikode and 9,000 poles at Pallam keeping the supply at Kundara to 31,000 poles. According to the plaintiff there was congestion at the yard still and he sought extension of the period of supply and such extension was given for the period up to 30th June 1964. According to the plaintiff there was congestion at the yard still and he sought extension of the period of supply and such extension was given for the period up to 30th June 1964. The plaintiff would say that even within this period the supply could not be made because by that time the plaintiff firm had discharged its workers and supply contractors and therefore required more time to supply for which, extension, when applied for was not granted. It is agreed now that out of the 30,000 poles to be supplied at Kundara (1,000 poles were later directed to be supplied at Nallalam Yard) only 26,322 poles were supplied at the Kundara Yard. At Pallam the entire supply of 9,000 poles were made. At Nallalam 10,000 poles were supplied and out of the further 1,000 only part was supplied and the balance defaulted. The supply to be made at Kundara was cancelled by the letter of the defendant, dated 19th November 1964 and the balance supply at Nallalam was also cancelled by letter dated 8th March 1965. According to the plaintiff this was really cancelled not because the plaintiff was unable to or unwilling to supply but because the defendant did not really require these materials. 3. The complaint of the plaintiff is that two bills remained to be paid and he was entitled to recover the amount due under these bills. Besides, the security deposits along with the retention money which had been treated as security deposit had also to be returned with interest. 4. The defendant filed a written statement and later an additional statement. The main contention raised by the defendant was that there was no congestion at the Kundara Yard, that the delay in the supply of these poles was entirely clue to the fault of the plaintiff, nevertheless the defendant extended time up to 30th June 1964, but the plaintiff still defaulted, that there was no justification for any further extension sought and therefore that was refused. It is claimed that as against the plaint claim of return of retention amount and security and the amount of the two bills the defendant was entitled to set off amounts by way of loss caused by the default of the plaintiff. It is claimed that as against the plaint claim of return of retention amount and security and the amount of the two bills the defendant was entitled to set off amounts by way of loss caused by the default of the plaintiff. According to the defendant, because of the short supply by the plaintiff, tenders had to be invited for fresh poles, such tenders for 4,200 poles were invited, agreements were entered into with Sri A. K. Poulose and another with one Sri T. K. Mathewkutty, this resulted in a loss of Rs. 15,960.73 and further Mathewkutty having defaulted alternate arrangements had to be made which again caused a further loss which loss also had to be recovered from the plaintiff. It is also said that for the delay in supplying the goods the defendant was entitled to levy penalty as provided in the agreement. 5. The court below found that the penalty was not in the nature of liquidated damages as claimed by the plaintiff and therefore for the delay in supplying the goods defendant was entitled to claim penalty after set off of what is claimed as penalty as against the plaintiff. That part of the decree has become final. The court below also found that the plaintiff was entitled to recover the amount claimed but was not entitled to recover interest for the period prior to suit. Compensation for damages to the extent of Rs. 9,376.32 was decreed to the defendant as damages due to the breach of contract by the plaintiff and this was allowed to be set off against the plaint claim. 6. Only two questions are raised in the appeal. The first concerns the question of damages awarded to the defendant for the failure of the plaintiff to supply the requisite number of poles and the second the question of interest on the plaint claim for the period from the date of demand till the date of suit. 7. The court below has assumed that in the absence of evidence as to what the damages would be the court can take 6 per cent of the value of the poles to be supplied as the quantum of damages. This is seriously challenged by counsel for the appellant Sri Venkitachalam. 7. The court below has assumed that in the absence of evidence as to what the damages would be the court can take 6 per cent of the value of the poles to be supplied as the quantum of damages. This is seriously challenged by counsel for the appellant Sri Venkitachalam. The contract, it is agreed, was for the supply of goods within a period of one year and this was extended up to 30th June 1964. That the goods were not supplied within the period is not disputed. The excuse urged on the side of the plaintiff is that due to the congestion in the Kundara Yard irregularity in the supply was necessitated so much so the entire contract could not be fulfilled within the time schedule. This is certainly not an answer and does not meet the claim of the defendant. Itwas up to the plaintiff to have made proper arrangements to supply the poles within the original period or within the extended period and if the plaintiff has not fulfilled its obligation it is liable for the loss. But there is no reason to assume that such loss is to be determined at 6 per cent of the value of the poles to be supplied. In fact on that part of the case the evidence adduced by the defendant is practically of no use. The date of breach of the contract, according to the defendant, is in November; because the notice informing the plaintiff that the contract is cancelled is issued in November. Whether it is that date which is relevant for the purpose of determining the damages or whether it is the date when the plaintiff ought to have supplied the poles, namely, 30th June 1964 up to which time he could have supplied the timber is not material for the purpose of this case, for, in regard to neither of these dates there is any evidence as to what the poles would have cost in the market at that time. The attempt in the evidence is to show that sometime in 1965 tenders were called for for 4200 poles, that two contracts were entered into, one with one Mathewkutty and another with Poulose and these resulted in a higher amount having to be paid to these persons. The attempt in the evidence is to show that sometime in 1965 tenders were called for for 4200 poles, that two contracts were entered into, one with one Mathewkutty and another with Poulose and these resulted in a higher amount having to be paid to these persons. The fact that in 1965 or sometime in 1966 the defendant chose to enter into a contract with two persons for supply of teakwood poles for a particular price is not sufficient or relevant to evidence what the value of these was on the date of breach which alone is relevant for determining the quantum of damages. There is no evidence to indicate that even at the time when the agreements were entered into with Sri Poulose and Sri Mathewkutty, Exts. D-149 and D-150, the market price had any comparison with the price agreed to under these agreements. Therefore merely because the defendant chose to execute agreements with two persons long after the relevant date and those agreements showed a particular price for some poles, it cannot be taken that the difference between the value at which the plaintiff agreed to supply and the value seen in Exts. DM49 and DM50 should be taken as the loss to the defendant. In order that the defendant should succeed it should have claimed the difference between the market price on the date of the breach and the price at which the plaintiff agreed to supply the poles as loss. The lapse of time made all the difference. The price of supply as evidenced in Exts. D-149 and D-150 agreements may not reflect the market rate since it was price agreed to at an auction. The plaintiff had no notice of the auction. For all these reasons plaintiff could successfully contend that the price indicated by Exts. D-149 and D-150 may have no relevancy to the price on the date of the breach which alone will determine the issue in the case. We may also indicate that the agreements, Exts. D-149 and D-150 are not for the quantities which the plaintiff had defaulted to supply. The number of poles to be supplied under Ext. D-149 was 1,700 at Nallalam and the number of poles to be supplied under Ext, D-150 was 2,500 at Kundara. We may also indicate that the agreements, Exts. D-149 and D-150 are not for the quantities which the plaintiff had defaulted to supply. The number of poles to be supplied under Ext. D-149 was 1,700 at Nallalam and the number of poles to be supplied under Ext, D-150 was 2,500 at Kundara. The default by the plaintiff was not for these identical quantities of poles and in view of the lapse of long period after the default it cannot be said that the purchase was for meeting any default on the part of the plaintiff. Therefore the defendant must be found to have not established the claim tor damages by proper evidence and for that reason the plaintiff should succeed to that extent. 8. On the question of interest the plaintiff has no case that he is entitled to interest based on any contract, or usage or that interest is claimable under equity. The Interest Act 32 of 1839 is sought to be applied to the case. Section 1 of the Act runs: "It is, therefore, hereby enacted that, upon all debts or sums certain payable at a certain time or otherwise, the court before which such debts or sums may be recovered may, if it shall think fit, allow interest to the creditor at a rate not exceeding the current rate of interest from the time when such debts or sums be payable by virtue of some written instrument at a certain time; or if payable otherwise, then from the time when demand of payment shall have been made in writing, so as such demand shall give notice to the debtor that interest will be claimed from the date of such demand until the term of payment; provided that interest shall be payable in all cases in which, it is now payable by law". The proviso is not sought to be applied to the case, for, it is not the case of the plaintiff that interest is claimable in equity so as to save it under section 1. The only case is that the Interest Act would apply because the claim is for a sum certain though not for a sum payable at a time certain. It is therefore said that the interest would be payable for the period subsequent to the notice demanding such interest. 9. The only case is that the Interest Act would apply because the claim is for a sum certain though not for a sum payable at a time certain. It is therefore said that the interest would be payable for the period subsequent to the notice demanding such interest. 9. An analysis of the provisions of the Interest Act, shows that, (1) upon all debts or sums certain payable at a certain time, the court may allow interest to the creditor, (2) such interest is not to exceed the current rate of interest, (3) the interest is payable from the lime when such debt or sum certain was payable when such debts are payable by virtue of a written instrument at a certain time, (4) if the debt or sum certain was payable not at a certain time but otherwise then interest will be due at the time when demand for payment is made in writing, (5) the provision in section 1 does not affect the cases where interest is payable by law otherwise. 10. Therefore, as the section now stands, it is not necessary that the debt or sum certain must be payable at a certain time. If it is payable at a certain time interest will run from such time. But what is necessary to attract the section is that there should be a debt or a sum certain. It is not contended that a claim such as that of value of articles supplied would come within the scope of the term 'debt', but the question is whether the plaint claim would come within the scope of that term. 11. The claim, as we have indicated, is in 3 classes: (1) The security deposit of Rs. 20,000 deposited by the plaintiff with defendant as security for due performance of the obligation under the contract. This is refundable not on a certain date but on the discharge of the obligation under the contract, (2) Amounts which have been recovered from the plaintiff at 5 per cent of the bills and retained by the defendant in terms of the provision for security of Rs. 92,500. The claim under this head comes to Rs. 73,129.97, (3) Amounts under two bills not paid, Rs. 19,040.58. 12. A sum certain is something which is ascertainable and does not require an adjudication by a court to ascertain the quantum. 92,500. The claim under this head comes to Rs. 73,129.97, (3) Amounts under two bills not paid, Rs. 19,040.58. 12. A sum certain is something which is ascertainable and does not require an adjudication by a court to ascertain the quantum. A claim for damages is the best illustration of a claim for a sum uncertain, for, what the damages should be is to be determined by the court. A sum such as an amount of a pronote is a sum certain, for, the amount that is to be paid pursuant to the claim under the note is certain. In between these two categories there is a class of cases the applicabilty of the Interest Act to which may not be easy to determine. Such is the case where goods are sold and the price remains to be realised. Parties might have agreed as to the quantum of goods to be supplied, the time at which goods are to be supplied and the price at which these will be supplied. It is possible to find out by calculation as to what amount would be due as price towards goods supplied so much so if a suit is to be filed for the value of the goods supplied the sum can be ascertained by simple arithmetical calculation. Could it be said that therefore the claim is for a sum certain falling within the meaning of section 1 of the Interest Act? This question in this form has rarely come up in any of the decided cases. But a very interesting discussion is found in a very early case in Juggomohun Ghose v. Manickchand, VII Moore Indian Appeals 263. The question posed in that case by Sir John Taylor Coleridge is in this fashion: "A promise to pay on the last Saturday of the year, at the rate of 15 s. a week tor twelve months, would certainly be a promise to pay a sum certain at a time certain. The question posed in that case by Sir John Taylor Coleridge is in this fashion: "A promise to pay on the last Saturday of the year, at the rate of 15 s. a week tor twelve months, would certainly be a promise to pay a sum certain at a time certain. It was argued also that in respect of both time and amount it was a question of degree, and in the same reasonable sense that every statute is to be construed, not captiously, but with a view to the expressed intention of the Legislature: this is true also, but these propositions do not remove the greater difficulty of determining at what period of the transaction between the parties must the amount and time of payment become ascertained. Is it necessary that these should be ascertained at the time the promise is made? or will it suffice if they become so at the time when it ought to have been fulfilled, and is broken? Ascertainment at any later period certainly could not suffice." In support of the answer to the question posed by the learned Judge the following passage speaks: "The statute, by the qualifications which it imposes of certainty in time and amount, by requiring that this certainty, and the obligation itself to pay the principal, should be created by a written instrument, by making the interest run from the time at which the principal is payable, and, finally, by giving the jury a discretion as to the allowance of interest, even where all these circumstances concur, seems to have been framed, not simply on the principle of compensation tot e creditor, but also on that of penalty to the debtor for not paying punctually at a time when he must have known the debt or sum, specific in amount, was to be paid. But for this consideration there was no reason why all debts, without distinction, should not have been made to bear interest from the time when payable; no previous uncertainty of amount, or of time of payment, would have been material, nor should any distinction have been made between obligations by writing and by word of mouth; nor ought the jury to have had any discretion; for in all cases the need of compensation to the creditor may be assumed to have been the same, But, if the conduct of the debtor be taken into account, then the uncertainty of amount, and the contingency as to the time of payment, and that there is no writing, are all more or less material; obviously the most honest and punctual debtor may be unprepared to pay an uncertain amount, which may not be due for months, or years, or only on the happening of a contingency, the falling in of which he may not know of. On this principle, too, the discretion given to the jury to consider all the circumstances of each particular case becomes perfectly reasonable. It is quite consistent with this view that where the debt is payable "otherwise" than at a certain time, interest is not to be allowed except from and after the time of a written demand of payment. This reasoning leads Their Lordships to conclude that the certainty required must exist at the time when the promise is made; and, therefore, that the Act does not in this part affect debts contingent in amount, and time of becoming due; a construction strictly conformable to the natural meaning of the language used." The High Court of Nagpur had occasion to consider the scope of the term 'sum certain' in section 1 of the Interest Act in Hasanali v. Dara Shah, A.I.R. 1949 Nagpur 282. Referring to the decision to which we have just now adverted, that in 7 Moore's Indian Appeals 263, Their Lordships said: "(22) The plaintiff claims interest on the unpaid commission. He relies on the Interest Act. In our opinion, the Act does not apply. (23) The relevant portion of the Interest Act is as follows: ˜Upon all debts or sums certain payable at a certain time'. In Juggomohun Ghose v. Manickchand, (7 M.I.A. 263 I Sar. 681 P.C.), Their Lordships, construing this part of the Act, held that. He relies on the Interest Act. In our opinion, the Act does not apply. (23) The relevant portion of the Interest Act is as follows: ˜Upon all debts or sums certain payable at a certain time'. In Juggomohun Ghose v. Manickchand, (7 M.I.A. 263 I Sar. 681 P.C.), Their Lordships, construing this part of the Act, held that. 'The certainty required must exist at the time when the promise is made; and, therefore, that the Act does not in this part affect debts contingent in amount, and time of becoming due; a construction strictly conformable to the natural meaning of the language used.' (24) In Their Lordship's case the debt or sum due was not certain at the time the agreement was made. All that was certain was that it could be ascertained with certainty on the happening of a certain event at a stated future time. In other words, the sum in question there only became certain after the agreement and was not certain at the time the agreement was made. The contract in Their Lordship's case was as follows: 'If, at the next ensuing public sale, the average price per chest of Patna opium should rise, above Rs. 1,300, the defendants promise to pay the difference between Rs. 1,300 and such average price'. (25) It is obvious that at the time specified in that agreement, namely, the date of the public sale the sum agreed to be paid could be determined with certainty, but not at the date of the agreement. The Privy Council held in respect of this: 'That any such difference would ever exist was quite uncertain If there should be any difference, what it would amount to was equally uncertain.' So also in our case. It was a matter of uncertainty at the date of the agreement, Ext. P-1, whether there would be any commission at all and if so how much it would come to. After all, though the parties contemplated sales it might in a conceivable contingency have happened that there would be no sales at ail. Equally it was impossible, at the date of the agreement, to say what the commission would amount to at any given point of time. After all, though the parties contemplated sales it might in a conceivable contingency have happened that there would be no sales at ail. Equally it was impossible, at the date of the agreement, to say what the commission would amount to at any given point of time. (26) The Privy Council also held that in their ease the time was uncertain though it was as much capable of ascertainment with exactitude once the event happened as was the price payable. But as that ascertainment was not possible at the date of the agreement Their Lordship's held that there was uncertainty within the meaning of the Interest Act. (26a) We quite agree that the sum' need not be set out in figures and that if it can be ascertained with certainty by mere mathematical calculations it is a 'sum certain', but it is not a 'sum certain' within the meaning of the Act unless these calculations can be made at the time of the agreement." 13. The Supreme Court had occasion to consider generally the scope of section 1 of the Interest Act. The court said in the decision in Seth Thawardas Pherumal v. The Union of India, 1955 (2) S.C.R. 48 thus: ''The Interest Act, 1839 applies, as interest is not otherwise payable by law in this kind of case [see Bengal Nagpur Ry. Co. v. Ruttanji Ramji, (65 I .A. 66)] but even if it be assumed that an arbitrator is a 'court' within the meaning of that Act, (a fact that by no means appears to be the case), the following among other conditions must be fulfilled before interest can be awarded under the Act:" (1) There must be a debt or a sum certain; (2) It must be payable at a certain time or otherwise; (3) These debts or sums must be payable by virtue of some written contract at a certain time; (4) There must have been a demand in writing stating that interest will be demanded from the date of the demand." In Union of India v. Watkins Mayor and Co., 1965 (II) S.C.W.R. 289) the Supreme Court was considering the claim by the plaintiff against the Union of India such claim being for rent of godown, Chowkidar's salary. Terminal tax paid, cartage from railway station to godown of the factory, unloading charges, colliage, etc., and dealing with the interest on these sums, the court said thus: "It is well established that interest may be awarded for the period prior to the date of the institution of the suit if there is an agreement for the payment of interest at fixed rate or if interest is payable by the usage of trade having the force of law, or under the provisions of any substantive law entitling the plaintiff to recover interest, as for instance, under section 80 of the Negotiable Instruments Act, 1881, the court may award interest at the rate of 6 percent per annum, when no rate of interest is specified in the promissory note or bill of exchange. There is in the present case neither usage nor any contract, express or implied, to justify the award of interest. Nor is interest payable by virtue of any provision of the law governing the case. Under the Interest Act, 1839, the court may allow interest to the plaintiff if the amount claimed is a sum certain which is payable at a certain time by virtue of a written instrument. But it is conceded that the amount claimed in this case is not a sum certain but compensation for unliquidated amount." 14. We think, that in regard to the claim for return of the security deposit of Rs. 20,000 there is no difficulty, for, it is evidently, a sum certain, since the sum was certain even on the date of agreement. In regard to the claims under the two bills the sum was certainly uncertain on the date of the agreement. That is the case with the retention money also, for the claim in the suit is not for return of security but return of money retained as retention money and it would not have been possible to envisage at the time of agreement what would be so retained by a particular date and therefore the amounts so retained could not be said to be sums certain within the meaning of that term in section 1 of the Interest Act. If so, invoking the provision of the Interest Act plaintiff is to be found to be entitled to interest only on Rs. If so, invoking the provision of the Interest Act plaintiff is to be found to be entitled to interest only on Rs. 20,000 from the date of demand, that is from 30th December 1964 up to the date of suit at 6 per cent. Modification is therefore called for with regard to the sum of Rs. 9,376.32 awarded as damages to the defendant by the decree of the lower court. That will stand vacated. Interest will be due as above on the sum of Rs. 20,000 at 6 per cent. The appeal is allowed to the above extent and dismissed in other respects. Parties will give and receive costs in proportion to their success in the appeal.